Sweeny, J.P., Renwick, Andrias, Clark, JJ.

13212 In re Deborah Glick, et al., Index 103844/12

Petitioner-Respondents-Appellants,
-against-
Rose Harvey, etc., et al.,
Respondents,
Veronica M. White, et al.,
Respondents-Appellants-Respondents,
New York University,
As a Necessary Third-Party,
Appellant-Respondent.
_________________________
Cooley LLP, New York (Alan Levine of counsel), for New York
University, appellant-respondent.
Zachary W. Carter, Corporation Counsel, New York (Michael J.
Pastor of counsel), for municipal appellants-respondents.
Gibson, Dunn & Crutcher LLP, New York (Caitlin J. Halligan, Randy
M. Mastro and Sarah Vacchiano of counsel), for respondents-
appellants.
_________________________
Order and judgment (one paper), Supreme Court, New York
County (Donna M. Mills, J.), entered January 10, 2014, to the
extent appealed from as limited by the briefs, granting the
amended petitions first cause of action to the extent of
declaring that the City respondents had alienated public parkland
without approval by the New York State Legislature in violation
of the Public Trust Doctrine, and enjoining respondent New York
University (NYU) from beginning any construction, in connection
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with the expansion project at issue, that will result in any
alienation of the three parcels found by the court to be public
parkland, unless and until the State Legislature authorizes the
alienation of any parkland to be impacted by the project, and
granted so much of the cross motions of the City respondents and
NYU as sought dismissal of the causes of action alleging
violations of the New York State Environmental Quality Review Act
(SEQRA) and the New York City Uniform Land Use Review Procedure
(ULURP), unanimously modified, on the law, to grant the cross
motions to dismiss the first cause of action, vacate the
declaratory and injunctive relief, deny the petition, and dismiss
the proceeding brought pursuant to CPLR article 78, and otherwise
affirmed, without costs. The Clerk is directed to enter judgment
accordingly.
Where, as here, there is no formal dedication of land for
public use, an implied dedication may exist when the
municipalitys acts and declarations manifest a present, fixed,
and unequivocal intent to dedicate (Riverview Partners v City of
Peekskill, 273 AD2d 455, 455 [2d Dept 2000]; see also Powell v
City of New York, 85 AD3d 429, 431 [1st Dept 2011], lv denied 17
NY3d 715 [2011]). In determining whether a parcel has become a
park by implication, a court should consider the owners acts and
declarations and the circumstances surrounding the use of the
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land (see Matter of Angiolillo v Town of Greenburgh, 290 AD2d 1,
11 [2d Dept 2001], lv denied 98 NY2d 602 [2002]). The burden of
proof rests on the party asserting that the land has been
dedicated for public use (id.).
Here, petitioners have failed to meet their burden of
showing that the Citys acts and declarations manifested a
present, fixed, and unequivocal intent to dedicate any of the
parcels at issue as public parkland. While the City has allowed
for the long-term continuous use of parts of the parcels for
park-like purposes, such use was not exclusive, as some of the
parcels (like LaGuardia Park) have also been used as pedestrian
thoroughfares (see Powell, 85 AD3d at 431). Further, any
management of the parcels by the Department of Parks and
Recreation was understood to be temporary and provisional,
pursuant to revocable permits or licenses (see id.). Moreover,
the parcels have been mapped as streets since they were acquired
by the City, and the City has refused various requests to have
the streets de-mapped and re-dedicated as parkland (see id.).
The court correctly found that the project-approval process
complied with ULURP and SEQRA. There is no basis to conclude
that the City respondents blocked open debate about the project
or refused to adequately scrutinize NYUs purported need for more
faculty housing. Further, the court correctly concluded that
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there was no need to restart the ULURP process to review
modifications reducing the projects size and scale (see Matter
of Windsor Owners Corp. v City Council of City of N.Y., 23 Misc
3d 490, 501-502 [Sup Ct, NY County 2009]). Nor was it necessary
for the Final Environmental Impact Statement (FEIS) to consider
the environmental impacts of locating the project in a different
neighborhood, as the purpose of the project is for NYU to expand
its facilities in the Washington Square Area (see Matter of
Jackson v New York State Urban Dev. Corp., 67 NY2d 400, 417
[1986]).
We have considered petitioners remaining arguments for
affirmative relief and find them unavailing.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: OCTOBER 14, 2014
_______________________
CLERK
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